양도제한조건부주식(RSU) 활용에대한법적쟁점

The use of Restricted Stock Units (RSUs) has recently gained prominence as an alternative to traditional stock options, serving as a key compensation tool for securing essential talent and aligning their interests with long-term corporate performance. However, the absence of explicit regulations in the Korean Commercial Act concerning the granting procedures, eligibility, and volume of RSUs creates concerns. This operational flexibility may be exploited for purposes such as managerial succession or the entrenchment of control by dominant shareholders. In light of these issues, this paper analyzes the legal challenges surrounding RSUs and seeks to propose a rational regulatory framework that aligns with their intended purpose of enhancing corporate competitiveness. This paper specifically highlights the limitations of applying Article 388 of the Korean Commercial Act (on Director's Remuneration) — a provision designed primarily for cash-based compensation — to RSUs. The conventional practice of merely obtaining shareholder approval for an aggregate cap on remuneration is inadequate for ensuring meaningful shareholder oversight, given the volatility and long-term nature of RSUs. Furthermore, it critically examines the lack of independence in board resolutions determining individual director's pay and the deficiencies of the current executive compensation disclosure regime, which often remains a mere formality. To address these problems, this paper first proposes an interpretation of Article 388 that would require key terms of RSU grants — such as grant criteria, calculation methods for the number of shares, and vesting conditions — to be subject to specific shareholder approval. It further suggests amending the Act, drawing on Japan’s Company Act, to specify approval requirements for different types of remuneration. Second, it argues for mandating the establishment of independent compensation committees for listed companies above a certain size to ensure objectivity and expertise in the remuneration-setting process. Third, to support informed shareholder judgment, it recommends substantively strengthening the disclosure system by incorporating elements from the U.S. SEC’s Regulation S-K Item 402, such as the ‘Compensation Discussion and Analysis’ (CD&A) and quantitative ‘Pay versus Performance’ disclosures. Finally, it posits that instead of an outright prohibition on granting RSUs to controlling shareholders, a more rational alternative is to deter abuse through strengthened procedural controls and enhanced disclosure, thereby increasing the utility of the system. In conclusion, this paper emphasizes that rather than enacting piecemeal regulations for each new compensation instrument, a more effective approach is to fortify the foundational pillars of corporate governance - namely, compensation committees and the disclosure regime. Such reforms would create a robust legal framework capable of flexibly accommodating new compensation tools and ensuring that RSUs function as an effective incentive to enhance both corporate and shareholder value.